The People of the State of New York ex rel. Joseph Price, Appellant, v. Theodore A. Bingham, as Police Commissioner of the City of New York, Appellant

The People of the State of New York ex rel. Joseph Price, Appellant, v. Theodore A. Bingham, as Police Commissioner of the City of New York, Appellant. Second Department, April 24, 1908. Municipal corporation — retirement of police officer, city of New York — mandamus. A police commissioner in the city of New York who, as required by the charter, has placed a police officer on the pension roll because of permanent disability as shown by the certificate of the police surgeons, has acted within his jurisdiction, and mandamus does not lie to compel him to reinstate the officer. Appeal by defendant, Theodore A. Bingham, as police commissioner of' the city of Hew York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of Hovember, 1907, granting the relator’s motion for an alternative writ of mandamus. Also an appeal by the relator, Joseph Price, from so much of said order as denies his application for a peremptory writ of mandamus. Edmund F. Driggs, for the relator. James B. Bell [Francis K, Pendleton with him on the brief], for the defendant, [MAJORITY — Per Curiam :] Per Curiam : This is an application for a writ of mandamus requiring the police commissioner of the city of Hew York to reinstate the relator in the police department to the place and grade from which the police commissioner has removed him, and an alternative writ has been granted. The application should have been denied. Section 355 of the city charter provides that the police commissioner shall by order dismiss from the police force and place on the roll of the pension fund any member of the police force who has performed duty on such force for twenty years or more, “ upon a certificate of so many of the police surgeons as the police commissioner may require, showing ” that such member “ is permanently disabled, physically or mentally, so as to be unfit for duty.” Sucli a certificate was regularly made in the case of the relator, following the decision in the case of Metcalf (48 Misc. Rep. 420 ; 109 App. Div. 892 184 N. Y. 268). It thereupon became the duty of the commissioner to dismiss and retire him. Having, therefore, acted with jurisdiction, and as required by law, a writ of mandamus cannot issue to compel him to undo his action. The relator cannot successfully attack the commissioner’s action and jurisdiction by going back of the same and attacking the truthfulness of the certificate of the surgeons. Their action was judicial and binding on the commissioner, and, moreover, if that question were here, we might have to decide that their action is not reviewable on an application for a writ of mandamus. (People ex rel. Francis v. Common Council, 78 N. Y. 33; People ex rel. Apfel v. Casey, 66 App. Div. 211). The order should be reversed and the application denied. Jenks, Hookeb, Gaynob, Rich and Millee, JJ., concurred. Order reversed, without costs, and application denied, without costs. Laws of 1901, chap. 466.— [Rep. Matter of Metcalf v. MeAdoo.— [Rep. Sub nom. People ex rel. Metcalf v. MeAdoo. — [Rep,